Category Archives: 6th Amendment – Fair Trial

Sarasota Police try to Charge an Attorney Defending Her Client

Sarasota defense attorney, and friend of the firm, Varinia Van Ness had criminal charges sought by the Sarasota Police against her for her representation of her client. The mere fact that officers would even consider trying to charge a defense attorney for zealously doing her job is shocking. It’s petty, retaliatory, and an affront to our adversarial system of justice. Fortunately, the officer’s multiple attempts to file charges were rebuffed by cooler heads.

Attorney Varinia Van Ness, via
http://www.vannesslawgroup.com/

It started when two Sarasota detectives sought to serve search warrants on Ms. Van Ness’ client and his phone. The parties agreed to meet at Van Ness’ office but about 10 minutes into the meeting, it was revealed that a Detective Derek Galbraith had activated a recording device without notifying Ms. Van Ness. When she found out, she insisted he either terminate the recording, or to leave the office. He declined to turn it off, but he also declined to leave the office. She indicated he was trespassing, but he still wouldn’t leave and Van Ness eventually called 911 to get him to leave.

After detectives left, they tried to serve the warrants again at the client’s work, at his brother’s house, and even at his ex-girlfriend’s home. Van Ness and her client agreed to meet at the police department. When the Detectives read the phone warrant, a spelling error was noticed in the client’s name, and Van Ness and her client left the room, though they ultimately did submit a DNA sample. Later that day, Detective Dan Riley from the Sarasota PD requested that a warrant be issued for the arrest of attorney Van Ness for obstruction of justice.

Fortunately, the warrant was never issued. It was submitted to a judge who recognized that the case involved a defense attorney doing her job, which would be a valid challenge to the warrant. He said it would have to be reviewed the State Attorneys office to see if formal charges were warranted. Sarasota PD didn’t give up, and submitted the warrant request to the State Attorney’s office. The local SAO had a conflict of interest, and the case was reassigned to the 20th Judicial Circuit SAO, who also declined to file charges. Sarasota PD took one more shot, submitting the case to FDLE, who also declined to pursue charges. The case was reviewed by three separate independent judges/agencies, who all agreed there was no merit to bringing charges.

This type of attack on an attorney is shocking and very problematic to the justice system. Ultimately, the fear would be that if cops can go charge an attorney for advocating for their clients, the chilling affect on the job of defense attorneys would harm our criminal justice system and is an affront to the Constitutional protection to the right to be represented by an attorney. The Sixth Amendment guarantees the right to assistance of counsel, and it applies at every level of a criminal investigation.

It’s rare that law enforcement would seek to charge an attorney for advocacy in the normal course of their work. Usually, it takes something really egregious, the Paul Bergrin case in New Jersey springs to mind, where he assisted gangsters placing hits against witnesses. Only something extreme that goes beyond advocacy should even be considered, and even then, it should be reviewed by attorneys before being submitted for a warrant.

Asking a Detective to leave your office because they recorded you without permission is not obstruction of justice. Declining to have your client turn over his phone password when his name is spelled wrong on the warrant is not obstruction of justice. That’s advocacy. Zealous advocates like Varinia Van Ness are the first check against government overreach and the primary protection of individual Constitutional rights. We are lucky to have defense attorneys like Varinia.

via Sarasota Herald-Tribune

Bitemark Forensic Evidence is Being Reconsidered as Junk Science: A Georgia Murder Case may be Thrown Out Because of It

sheila denton

Sheila Denton

A case originating in Waycross, Georgia that relied heavily on bitemark evidence is being challenged in a post-conviction proceeding. Bitemark comparison forensic evidence has been increasingly disfavored as the science that underpins it has been increasingly challenged, like some other forensic sciences that have been shown to be unreliable. Like hair-sample analysis, which was examined at length by the New York Times in 2015, these types of forensic testimony are being reconsidered as ‘junk science’.

denton picture11alive.com in Atlanta did a good deep dive on the case of State v. Sheila Denton, who was convicted with the only physical evidence tying her to the scene being bitemark evidence. She was also implicated by her crack dealer, who claims she admitted to the killing, but whose testimony shows indications of being coerced. The reporters, including former Fort Myers-based reporter Andy Pierrotti, do a great job on the story, and have a follow-up story coming on Sunday. The post-conviction hearing was a few weeks ago, and the State has another week or so to respond to the Defendant’s brief. The judge’s ruling will come some time down the road.

https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2FAndyPierrottiReporter%2Fvideos%2F203685097184288%2F&show_text=0&width=560

 

A Look at the Ramifications of Florida’s Death Penalty Issues

The procedure for Florida’s Death Penalty was found to be unconstitutional, despite efforts to rework it, until March of last year, when a procedure that meets Constitutional muster was approved and signed into law. But what to do with the cases that had been sentenced under the old procedure. Florida’s Supreme Court ended up splitting the baby, basing their decision on when the US Supreme Court issued their controlling decision in Ring v. Arizona back in 2002. The Florida Court decided that the rule would be applied retroactively to cases decided after the Ring decision, but that individuals sentenced before then are out of luck: even though the Court had already decided the procedure used to sentence them was unconstitutional.

The decision is based on the rule that decisions based on procedure will not be retroactive. In the last several weeks, the Court has been busy issuing ruling after ruling that declines to apply the rule announced in the Hurst case to pre-2002 convictions. This column from the Tampa Bay Times takes a look at the spate of opinions that have recently been released, and the sometimes incongruous results. It’s definitely worth a read.

Via: Tampabay.com

The State might be Paying a Key Witness in the Theresa Sievers Murder Case

  • Indications are that Jimmy “The Hammer” Rodgers former girlfriend is being paid by LCSO
  • Rodgers and Mark Sievers facing possible death penalty in the murder of Mark’s wife Dr. Theresa Seivers.

Theresa Sievers

Theresa Sievers

We haven’t had much coverage in the case of Dr. Theresa Sievers, who was killed allegedly at the hands of two associates of her husband Mark, Curtis Wright and Jimmy “The Hammer” Rodgers. Curtis Wright has already pled to second-degree murder charges, and Rodgers and Mark Sievers are facing a possible death penalty. The case is extremely complex, due to the length of the investigation and the fact that it stretches all the way to Missouri, and the parties have been bogged down in discovery issues.

Now, NBC-2 has uncovered something very interesting in a discovery motion filed by Mark Sievers’ attorney. In the Motion to Compel Discovery, Sievers requests records relating to funds that are being paid to Taylor Shomaker. Shomaker was dating Jimmy Rogers at the time of the murder, and gave a statement against him, and is expected to be a key witness wen the case goes to trial. Therefore, if she has received payments for her testimony, especially if she’s receiving them on a regular basis, that’s fodder for the defense attorneys.

mark sievers jimmy rogers the hammer

Mark Sievers and Jimmy “The Hammer” Rodgers

The legal issue is whether the monetary incentive could influence a witness to testify favorably for one party. It’s not unusual for professional or expert witnesses to be paid for the time they spend working on a case: consider a doctor a or a lab expert that may be hired to give an opinion on a case. However, these types of witnesses are expected to be paid, and even then it is just for the actual time they spend. Even then, it is fodder for the other side to impeach a witness based on the money they are being paid to testify. The Defense will argue that she is being paid to get her to testify against the others, and the more money she is paid, the less reliable her testimony will be.

curtis wayne wright lee

Curtis Wayne Wright

Likewise, Curtis Wright is receiving compensation for his testimony, but not monetary. The Defense will argue that Wright is testifying so he can get a better deal. The State already let him plea to 2nd Degree Murder, effectively eliminating the risk of the death penalty for him, and potentially less prison time. In their motion, the the Defense is also trying to get documentation related to Wright’s proffer and his cooperation. Wright’s testimony will be key to tie Sievers into the plot, as it appears Wright and Rodgers committed the murder while Mark Sievers was out of town. They may have some evidence of communication between Sievers and Wright, but his testimony will be key to prove Sievers’ knowledge and complicity in the plot.

Taylor Shomaker

Taylor Shomaker from her law enforcement interview

That’s not unusual, for consideration to be given to one conspirator to go after another. However, the circumstances regarding the payments to Ms. Shomaker are extremely unusual. Perhaps it will be revealed that it was compensation for travel expenses or something innocuous, but the indications in the Defense’s Motion to Compel certainly sounds out of the ordinary.

via NBC-2

UPDATE: TRIAL POSTPONED – Jury Selection to Begin in Lavaya May Trial

Tuesday morning update: the trial has been postponed. As of this morning, the State is asking to stay the trial to appeal the court’s ruling yesterday that the notebook written by Lavaya May would not be admissible. The problem with that is, the Defendant had demanded a speedy trial, so the state is asking the judge to stay the speedy trial until the appeal can be ruled on. That’s extraordinary relief. WINK news is reporting that the trial will be put off up to 90 days, but it sounds like things are very much in flux, at this point.

  • May Accused of 2nd Degree Murder, Conspiracy to Commit Murder and other charges
  • May Allegedly persuaded 2 of her friends to kill 58-year-old Ted Lee
  • May, who is still a minor, claims Lee started molesting her when she was 8-years-old

lavaya may

Lavaya May

The trial and jury selection for the murder trial of Lavaya May is scheduled to start Tuesday morning, the trial could take 2 or even 3 weeks to complete, according to the attorneys handling the case. Although May was 16 at the time, she has been charged as an adult, and is facing life in prison on the murder charge.

The prosecution just found out that they lost some of their evidence after a day-long suppression hearing. The judge heard evidence and argument on Friday, and just Monday afternoon ruled that the state cannot introduce evidence from a journal that Ms. May was keeping in custody.

That’s the second suppression loss for the state, as the court previously ruled that the statement Ms. May made when she was arrested was illegally obtained in violation her rights. After the killing, May and the others fled out of state. When they were arrested, an attorney ad-litem who had been appointed to May contacted the Sheriff’s office and indicated she was invoking Ms. May’s right to have her attorney present. Detectives, recognized the issue, and contacted the State Attorney’s office, who incorrectly advised them to proceed with the interrogation of the juvenile May without her attorney. It was a clear violation of her right to counsel, and now they will not get to use her statement, either.

Jonathan Ruffini

Jonathan Ruffini

The State’s star witness will likely be the co-defendant, Jonathan Ruffini. Ruffini, who was 18-years-old at the time of the offense, a year ago, has already entered a guilty plea, and agreed to accept 25 years in prison for his role, in exchange for agreeing to testify. The other defendant, then-23-year-old Hunter Tyson, has also accepted a plea agreement for 40 years in prison, and there is no indication in his court file that he was given consideration for cooperation. It’s anticipated that Ruffini will testify that he and Tyson committed the murder at the behest of his friend/girlfriend May, due to her complaints about being molested by Lee. (Ruffini doesn’t have a DOC photo yet, as he’s being held in the Lee County Jail in anticipation of his being called to testify in the May case. There have been some changes in his story, and only recently did the state list him as a witness, so he may not be that reliable for them.

hunter tyson

Hunter Tyson

The challenge for the state is substantial, as it appears pretty clear that Ruffini and Tyson committed the murder, by baseball bat and knife- with Tyson being the primary killer. To prove a murder, they don’t have to show that May personally took part in the killing, but they can prove that she was a principal to the murder if she aided, abetted, or even encouraged the crime. Under Florida’s principal theory, she is

hunter tyson doc.jpg

Hunter Tyson in DOC

just as guilty as the others if she is found to be a principal. She is also charged with Conspiracy, for plotting the killing with the others. She may garner some sympathy, if the Defense is able to introduce the allegations that Lee had molested her for years. However, that is not legal justification for murder, as the abuse was in the, and would not present an immediate danger for self-defense/justifiable use of deadly force. More likely, the Defense team is going to try to frame the case as an act that was done by Tyson and Ruffini on their own, and not at the instigation of May. Both Tyson and Ruffini have admitted to committing the murder, and plead out to murder charges, but May can only bring that up if they are called in to testify. She can still blame Tyson, even if his admission is not introduced. Ruffini’s statement points the finger primarily at Tyson, and the Defense will try to say he’s blaming May to get a lesser sentence. The trial will be interesting to watch.

 

Florida Legislature Planning Bill to Re-establish the Death Penalty

The Death Penalty has been on hold in Florida for some time. While the Florida Supreme Court struck down the current law for its non-unanimous procedure, that law was only passed a year ago to address earlier decisions that prohibited the enforcement of the death penalty, also for procedural reasons. The courts have made it clear they will require a unanimous finding by a jury before a judge can impose death. A new bill being prepared would address that. Once the law is reestablished, the prosecutors across the state will have to review the cases since 2002 to determine if they wish to proceed on new death penalty sentencing hearings: which will affect a few cases here in Southwest Florida.

Florida State Senator Introduces New Bill to Re-Re-Fix the Death Penalty

florida-historic-capitol

Florida Capitol

Florida effectively has no death penalty right now. First, the procedure that had been in effect for years was ruled unconstitutional by the U.S. Supreme Court, in the Hurst decision. Then, the legislature rushed through a new law to try to fix it, but the new law also failed to require a unanimous recommendation by the jury, and the Florida Supreme Court struck it down, as well. A new bill seeks to correct that shortcoming.

This bill in the State Senate is the first step in changing the law to make a lawful death penalty. The Florida House would also have to pass a law, and then for it to be signed by the governor before the State can resume seeking the death penalty. Right now the death penalty is on hold, pending a new law. The House may end up looking at even more extensive changes to the death penalty when they take up the issue, probably in this upcoming session, as well. The legislature may also look at changes to the Stand Your Ground Law this year.